Two Royal Newfoundland Constabulary officers accused of unlawful arrest and excessive force should have their charges upheld, their lawyers argued before the police force’s public complaints commission on Thursday.
Const. Bernard Morgan and Const. Isabella Wagner were involved in a 2017 incident in which RNC officers apprehended, charged and detained a father and son. The actions were later deemed unlawful by an independent investigation, which said the charges should stay.
Final submissions in the matter before the public complaints commission started Thursday, with lawyers for Morgan and Wagner arguing their clients’ rights have been breached by an abuse of process.
The case in question occurred November 8, 2017, at the scene of car accident scene near Topsail Road and McNamara Drive.
Silent dashcam video shows Dennis Ball pull a U-Turn around the incident and accelerate whereas driving away. In a 2019 interview with the media, Ball said he had rolled down his window to tell officers “someone should direct the f–king traffic before there’s another accident.”
One of the officers on scene, followed Ball to his Paradise home where they both alighted from their cars.
Ball said the officer told him to “get on the effing ground,” but he wouldn’t.
“As I was going around my car he grabbed me, threw me up against the garage. I slid down the car,” Ball said.
He said the officer told him he was under arrest for “flying through the intersection like a mad person, screeching tires,” which Ball denied.
Home surveillance video shows the confrontation and Ball’s son Zachary running out from the family’s house.
The son said he asked the officer why his dad was being arrested and said the officer told him to back away or he could be arrested too.
“That’s when me and him had a few words,” Zackary said in the same 2019 interview with the media.
Zachary said he never touched the officer and came just within four or five feet of him, but that the officer “must’ve felt threatened in some way,” since he pepper-sprayed him.
The footage shows Zachary walking back into the house and two more officers – Wagner and Morgan – arriving on scene.
‘Get a warrant’
They asked him to come outside.
“I told them to get a warrant because I didn’t think they had any reason to come into my house, come to our home, and do what they were doing,” he said.
Wagner broke the patio door glass, and the younger Ball says he then voluntarily walked outside and the officers asked him to lie in the broken glass so they could handcuff him. Lawyers for the officers claim there is no evidence he was told to lie in the glass.
The surveillance footage shows Morgan striking Ball in the back of the head with his forearm whereas the officer is leading a handcuffed Zachary to a cruiser.
His lawyer said that is a tactic his client was trained to do when facing resistance.
Alleged abuse of process
In the abuse of process charter application Thursday, Ken Mahoney, Morgan’s lawyer, said his client “did what he had to do” when he arrived.
Wagner’s lawyer, Stephen Orr, said once force is administered, in this case pepper spray, it is fair for officers to assume a subject is already under arrest by the officer who administered it and to “proceed accordingly”, calling it a “de facto arrest”.
Abuse of process is
“fundamentally about protecting people from the unfair treatment by administrative agencies,” Orr said at the hearing on Thursday.
Whereas “used in the rarest of circumstances,” he said, abuse of process is a principle in which a party must prove the fairness of the hearing has been compromised and the abuse caused serious prejudice to the hearing, to the extent that it would bring the justice system into repute.
It’s a charter application, according to James Strickland, counsel for the RNC’s complaints commission.
The outcome can result in discipline, but the main obj3ective of the hearing is the protection of ot the public and public confidence, he added.
Neither “life, liberty or security of person” were infringed or are at risk due to the hearing, he said.
These aren’t criminal proceedings, Wagner and Morgan are charged with unlawful arrest, excessive force, wrongful entry into a residence and discourteous behavior for swearing whereas on duty, through the complaints commission.
The officers were placed on paid, administrative duties sometime in 2018, but Morgan and Wagner were reinstated to operational duties in late last year, as per an RNC spokesperson.
Night in lockup
The dad and son spent the night in the St. John’s lockup.
Six months down the line, in May 2018, when RNC Chief Joe Boland saw footage of the incident, he requested an independent probe into the matter.
The Ontario Provincial Police were called in and overseen by Newfoundland lawyer Gus Bruce.
Bruce decided the arrests if Dennis and Zackary Ball were unlawful, that pepper-spraying and hitting Ball was not justified and that there were no reasonable grounds for Wagner to break the window of the house.
Bruce determined charges of assault, assault causing bodily harm and unlawful confinement should have been laid against the first officer on the scene.
In addition, he said charged of mischief, unlawful confinement and assault be laid against another officer, and that the third officer could have also been charged with mischief for breaking the glass window.
However, charges were never brought forward.
Iain Hollet, ex-director of public prosecutions, said the Crown chose not to prove the case beyond a reasonable doubt.